SAMINATHA ODAYAR Vs. THIAGARAJASWAMI ODAYAR

JUDGEMENT

(1.) The first point raised is one of res judicata. It is said that as the District Munsiff decided on 20 August, 1918, that the petition to execute the decree personally against first defendant was not barred in the absence of the first defendant, that constitutes res judicata and the respondent is debarred from raising the plea now that the execution application is out of time. The reason given by the - District Munsiff for his decision is that 12 years had not elapsed since the hypothecation became exhausted ; but the Privy Council decision in Khulna Loan Co. V/s. Jnanendra Nath Bose (1917) 22 C.W.N. 145, clearly lays down that the 12 years is to run from the date of the decree in the casa of a decree of the kind in question where the mortgaged properties were first to be sold and the balance, if any, realised from the other properties and parsons of the judgment-debtors. At any rate, the present application is clearly barred by Section 48, Civil Procedure Code, and the section is held by the Privy Council decision to apply to a decree of this kind. The intermediate step in 1911 which was moreover dismissed and again restored in 1921 does not affect the question. Had the present application depended on the legality of the previous one, as in Lakshmanan Chetti V/s. Kuttyan Chetti (1901) 24 Mad. 669, there might be something to be said for the petitioner; but the present application falls within the mischief of Section 48, Civil Procedure Code, and the ruling of the Privy Council in Khulna Loan Co. V/s. Jnanendra Nath Bose (1917) 22 C.W.N 145, is, in my opinion, applicable.

(2.) The second point is that the decree is in reality two decrees and that, therefore, a new starting point for limitation begins after the hypotheca is exhausted. The point has already been dealt with and is covered by the Privy Council decision referred to.

(3.) The C.M.S.A, must, therefore, be dismissed with costs.